In a judgment with implications for a series of legal challenges brought by affected prisoners, a\u00a0Divisional Court consisting of one Lord Justice and a High Court judge have held that the Secretary\u00a0of State for Justice, Chris Grayling\u2019s \u2018absconder policy\u2019, is unlawful.<\/p>\n
The policy was introduced following high profile press reports in May 2014 of prisoners absconding\u00a0whilst on Release on Temporary Licence from prison (ROTL). Whilst these \u2018absconder\u2019 cases\u00a0were in fact isolated and rare incidents, the Secretary of State responded by introducing a policy\u00a0on 21 May 2014, that \u2018absconders\u2019 would no longer be eligible for transfer to open conditions and\u00a0ROTL save in exceptional circumstances. The scope of the \u2018absconder\u2019 policy was so wide that it\u00a0included the Claimant, who failed to return to prison from ROTL on a Sunday evening after missing\u00a0his train, but handed himself into custody the following morning.<\/p>\n
At the time of the press reports in May 2014, Mr Grayling told Sky News, \u201cWe are tearing up the\u00a0system as it exists at the moment.\u201d[1]<\/p>\n
But the absconder policy that was introduced so hastily placed the Secretary of State at odds with\u00a0his own Directions to the Parole Board, which state:<\/p>\n
\u201cfor most (but not all) indeterminate sentenced prisoner (ISP) cases, a phased release from\u00a0closed to open prison is necessary in order to test the prisoner\u2019s readiness for release into\u00a0the community.\u201d<\/em><\/p><\/blockquote>\n
In a judgment handed down today[2], the High Court held the absconder policy to be unlawful, and\u00a0described the inconsistency between the Secretary of State\u2019s Directions and his absconder policy\u00a0as \u201cirrational\u201d.[3]<\/p>\n
The Divisional Court rejected the Secretary of State\u2019s argument that, since the Directions to the\u00a0Parole Board were issued by him, he had the power to ignore or contradict them[4], noting:<\/p>\n
\u201c… so long as they remain in force… he cannot lawfully tell the Board to ignore them or his\u00a0officials to frustrate them.\u201d[5]<\/em><\/p><\/blockquote>\n
The Prison Reform Trust has analysed Ministry of Justice statistics used to back up the policy and\u00a0demonstrated that the system of temporary release from open conditions in order to facilitate\u00a0rehabilitation back into the community has a failure rate of only 0.06%.[6]<\/p>\n
The Prisoners\u2019 Advice Service comments:<\/p>\n
\u201cThe Secretary of State\u2019s contention that he is entitled to ignore and contradict his own\u00a0policy guidance demonstrates either his ignorance or flagrant disregard for basic legal\u00a0principles of consistency and transparency in public decision making. The so-called \u2018absconder policy\u2019 was introduced as a knee-jerk reaction to negative press reports without\u00a0adequate consideration for either existing policies, or its impact on the prisoners whose\u00a0progression to open conditions was abruptly prevented.\u201d<\/em><\/p><\/blockquote>\n
The Court has granted the Secretary of State permission to appeal against the declaration that the\u00a0policy is unlawful, but refused permission to appeal their ruling that the handling of the Claimant\u2019s\u00a0case was unfair.[7]<\/p>\n